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David R. Cross quoted in article “IP Cases To Watch In 2013”

Law36001/01/13

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The Supreme Court has not yet decided whether to hear this appeal, in which Retractable Technologies Inc. is seeking review of the Federal Circuit rules on claim construction. While the solicitor general urged the court in November not to take the case, many attorneys are hoping the justices will weigh in to provide clarity to a murky area of the law.

Retractable is challenging two Federal Circuit rules on claim construction. The first is that claim construction should always be reviewed afresh, with no deference to the district court. The second is that courts are permitted to depart from the meaning of terms in a patent claim based on the language of the patent specification.

Having the Federal Circuit review claim construction rulings de novo leads to frequent reversals and "makes the whole process extremely costly, time-consuming and uncertain," said David Cross of Quarles & Brady LLP.